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SDNY Applies Original FRCP 37(e) to Decide Spoliation Motion

Posted on April 22nd, 2016

An inmate sued the United States and various government employees for violations of his constitutional rights in McIntosh v. U.S. et. al., Case No. 14-7889 (S.D. N.Y., Mar. 31, 2016). Plaintiff filed the suit pro se, and thereafter filed a Motion to Preserve Documents. Plaintiff’s Motion was based on his belief that the prison staff would “intentionally suppress” the evidence supporting his various claims. Plaintiff was requesting video footage and sign-in logs. Defendants asserted that the video footage is only saved for a maximum of 21 days before its destruction unless a staff person manually overrides the purge.

As part of his Motion, Plaintiff sought a preliminary injunction, which the Court denied, as all the materials sought by him were either destroyed, turned over to him or preserved. The Court also held that Plaintiff had not shown irreparable harm. Plaintiff also requested an adverse inference instruction based upon the destruction of the video.

In looking at FRCP 37(e), the Court determined that the December 1, 2015 amendment should not be applied in this case, as the issues were briefed prior to the amendment taking effect. Therefore, it looked at the adverse inference instruction request to determine whether the tapes were relevant, as well as whether Defendants had a duty to preserve the tapes, destroyed the tapes despite that duty, and did so with a culpable state of mind, a much less stringent standard than the new FRCP 37(e). In doing so, the Court still denied Plaintiff’s request with regard to certain footage, holding that he had not met his burden with regard to relevance or with regard to the duty to preserve.  The Court then declined to rule on the remaining footage.

ILS – Plaintiff Electronic Discovery Experts

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